[Editorial] Fake news, real risks

The revised Information and Communications Network Act takes effect today, amid controversy over concerns that it could chill freedom of expression.

The revised act subjects news organizations, YouTubers and influencers to punitive damages of up to five times the actual damages if they knowingly disseminate "false or fabricated information" online.

It also allows authorities to impose an administrative penalty of up to 1 billion won ($652,000) if they redistribute, on two or more occasions, information that has been officially determined through a court ruling or other final decision to be illegal, false or fabricated.

The revised law also requires large platform operators with more than 1 million daily users, such as Naver and Kakao, to establish reporting channels for illegal, false or fabricated information; take action upon receiving a report; and disclose how the report was handled.

From the outset, the amendment was pushed through without sufficient debate, triggering a strong backlash from critics who dubbed it the "online gag law."

Nevertheless, the ruling Democratic Party of Korea introduced the bill, citing the need to combat fake news, and forced it through the National Assembly in December last year.

In addition to its vague regulatory standards and excessive penalties, another harmful aspect of the revised act is the possibility that politicians, senior government officials and large corporations could abuse so-called Strategic Lawsuits Against Public Participation to silence news organizations and YouTubers.

Even before seeking a legal determination as to whether content is false, politically or economically powerful public actors could put a damper on journalistic activity simply by signaling an intention to sue news organizations or YouTubers.

There are also widespread concerns that the revised act's severe penalties could chill the freedom of expression of ordinary internet users. Online, many are voicing fears that a single ill-considered comment could leave them liable for massive damages.

Above all, one of the most serious problems is that the revised act could be abused because what constitutes "false" or "fabricated" information could vary depending on the administration in power.

Under the revised act, whether information is deemed false will be determined by a fact-checking organization that receives administrative and financial support from an agency under the Korea Media and Communications Commission.

Although the organization is nominally private, its political independence and impartiality are difficult to guarantee as long as it is funded by the government. It is likely to render judgments favorable to the government and the ruling party.

Platform operators are required to promptly remove content or suspend the relevant accounts upon receiving reports alleging that the content is false or fabricated. Failure to do so could expose them to administrative surcharges and even criminal penalties.

Reports can be filed not only by the alleged victims but also by third parties. This raises the possibility that supporters of those criticized in a legitimate online post could report it as false or fabricated information.

The likely outcome is that platform operators will mitigate their legal exposure by preemptively taking down posts that could spark controversy. That is effectively a form of self-censorship driven by excessive caution.

Few, if any, would oppose the goal of preventing the spread of false or fabricated information.

However, it is difficult to dispel suspicions that the revised act is structured to favor a particular political force, given the vague definitions of false and fabricated information and the lack of independence of the body responsible for making such determinations.

Harsh penalties lead individuals to self-censor before expressing criticism for fear of violating the revised law. That, in turn, chills freedom of expression.

Above all, the revised act risks being abused as a tool to silence criticism of the government and politicians. It should be revised again to eliminate its potential constitutional defects.